OPM Leave Administration

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Joe Lane requested and was granted six months of intermittent FMLA
leave to "care for " his mother, who suffered from diabetes, high blood
pressure, weight loss, and arthritis. The medical certification he
provided established that Lane would use the leave to assist his mother
with meals and take her to doctors appointments, which he did without
incident for approximately four months. Lane was absent four
consecutive days beginning July 23, 2008. In violation of company
policy, he did not call in his absences. When contacted, Lane explained
that he took the last three consecutive days off because of flooding in
the basement of his mother's home where he was staying. The company
fired Lane.

Lane sued, alleging that his termination interfered
with his FMLA rights as he should have been granted FMLA leave for the
three-day period to clean up the flooded basement. He argued that he
needed to clean up the basement because the sitting water was a breeding
ground for disease that would aggravate his mother's hepatitis. An
immediate problem was Lane's concession that he had not previously
informed the company that his mother suffered from hepatitis. The
company moved for summary judgment, arguing that the absence to clean up
the flooded basement was was not covered by the FMLA. The court agreed
with the company.

The court initially noted that the absence to
clean up the flooded basement fell outside the parameters of his
approved certification for FMLA leave to provide his mother meals and
take her to doctor's appointments. The court further noted that Lane
had failed to offer evidence establishing that cleaning his mother's
flooded basement fell with the FMLA's definition of "needed to care for"
a covered family member due to a serious health condition. He did not
offer evidence to back up his claim that his mother suffered from
hepatitis, how such a condition constituted a "serious health condition"
within the meaning of the FMLA, or how his mother's hepatitis was in
danger of being aggravated if Lane did not immediately clean the
flooding. Nor did he establish how cleaning the flooded basement fell
within the requirement that physical or psychological care address the
basic medical, hygienic, nutritional or safety needs of his mother. 29
CFR 825.124(a). Finally, the court found that alerting his employer
(after-the-fact) that he needed leave to clean his mother's flooded
basement failed to place the employer on notice that the employee may
have been seeking FMLA leave.

Comment:
The decision demonstrates that, while broad, the "caring for" component
of FMLA leave is not unlimited. Note the court's interest in the
absence of evidence establishing how cleaning the flooded basement
"cared for" the mother's condition. Courts have generally favored
activities that directly provide care to the seriously ill family member
over those, such as in this case, that may only indirectly provide
physical or psychological care. Arguably, by cleaning up the mess
himself, Lane may have relieved his mother from performing an activity
that, with arthritis, she could not perform easily, if at all. He may
have also provided her psychological care by relieving her of this
responsibility. Sitting water may have presented safety issues as
well. Apparently, these arguments were not sufficiently developed for
the court.

One could argue that the court's interpretation of
"caring for" is overly restrictive. For example, Lane goes over to his
mother's home to make her a meal. In addition to providing her with
physical care (the meal), he is providing her with psychological care by
being with her. While his mother eats he goes down into the basement
for something. In so doing, has he lost FMLA protection because he
momentarily left the room where his mother is eating? Is physical and
psychological care so limited? If Lane made lunch and, while his mother
was eating, he slipped out of the house to get the mail from the
mailbox at the curb, can he be fired for exceeding his medical
certification? What if Lane was taking care of his mother a great
distance from where he lived and worked and could not get back to work
easily. Do FMLA protections turn on and off like a light switch
depending on whether Lane is in the room with his mother? Is that what
the FMLA is all about?

At the end of the day, Lane's failure
to call-in his absence for four consecutive days without a credible
explanation likely doomed his FMLA case.

On June 22, 2010, the US Department of Labor reinterpreted the existing requirements for an inlocoparentis relationship for FMLA leave due to the birth, adoption, foster care placement or serious health condition of a son or daughter. The FMLA permits an eligible employee-parent to take FMLA leave to bond with a newborn or newly adopted/foster care placed son/daughter, or to care for a son or daughter with a serious health condition. Parent includes inlocoparentis relationships- meaning situations where there is not a biological or legal relationship between parent and child, but the person assumes the role of the parent toward the child. Under the existing regulation, 29 CFR 825.122(c)(3), an in locoparentis relationship has two requirements: (1) day-to-day care of the child; and (2) financial support. In the memorandum, the DOL announced that the regulations only requires that the employee who intends to assume the responsibilities of a parent to either provide day-to-day care for the child OR financial support, but not both. The DOL's "interpretation" is at direct odds with the plain reading of the regulation.

Comment: The DOL Memorandum received a lot of Press because of it confirmed that same-sex partners who satisfy the definition could be an in loco parentisparent for purposes of FMLA leave. While that has always been a distinct possibility, it is noteworthy that the DOL has put in it writing. The substantive change is that the DOL has reduced the burden for establishing an in loco parentisparental relationship with a child from two requirements to one by interpreting "and" in the existing regulation to mean "or." My guess is that the DOL will formalize the change when it gets around to issuing regulations to implement the 2010 National Defense Authorization Act changes to military family leave.

While the DOL memorandum does not technically control the OPM FMLA regulations, federal agencies, unions, and employees would be well-advised to apply the changes anyway. The OPM FMLA regulations were derived from the DOL FMLA regulations. With respect to in loco parentis, the OPM definition is identical to the DOL definition.

During the last presidential campaign, candidate Obama favored
expansion of the FMLA to allow an employee to take job-protected leave
to care for a same sex domestic partner suffering with a serious health
condition. Pending legislation (H.R. 3047) seeks to make such a change
law. Currently, the Defense of Marriage Act excludes same-sex marriages,
including civil unions or domestic partnerships, from FMLA coverage (by
defining a "spouse" as member of the opposite sex).

Given the President's expressed
support for changes to the FMLA, and the Democrats control of Congress
(at least until mid-term elections this November), it is possible that
legislation to modify the FMLA, including the addition of domestic
partnerships, might be seriously considered. With regard to expansion
of the FMLA to cover same-sex partnerships, what that legislation might
look like may be gleaned from recent regulatory changes made by the US
Office of Personnel Management (OPM) allowing some federal employees to
take leave (but not FMLA leave) for a domestic partner. See 75 FR
33491-33497 (June 14, 2010). The regulations take effect July 14, 2010.

On June 17, 2009, President Obama
directed OPM to clarify that existing employment benefits enjoyed by
federal workers extended to same-sex domestic partners. OPM did so by
altering the definition of a "family member" to include a domestic
partner in a committed relationship. The benefits extended included
the federal employees ability to use sick leave, funeral leave,
voluntary leave transfer, voluntary leave bank, and emergency leave
transfer in relation to .

Domestic partner means an adult
in a committed relationship with another adult, including both same-sex
and opposite-sex relationships. Opposite-sex domestic partnerships
would cover common law marriages in States that do not recognize common
law marriages. In States that already recognize common law marriages,
the inclusion of opposite-sex domestic partnerships suggests coverage
for committed relationships that fall short of a common law marriage.

Committed
relationship means one in which the employee, and the domestic
partner of the employee, are each other's sole domestic partner (and are
not married to or domestic partners with anyone else); and share
responsibility for a significant measure of each other's common welfare
and financial obligations. This includes, but is not limited to same-ex
and opposite-sex relationships granted legal recognition by a State or
the District of Columbia as a marriage or analogous relationship (e.g.,
civil union).

OPM rejected suggestions that it issue regulations
governing what documentation an agency may request to substantiate a
covered domestic partnership. It noted that agency's typically do not
ask for documentation to substantiate leave to prove an employee's
relationship with a parent, brother, sister, or spouse. OPM implied
that, absent suspicion of leave abuse, it should follow that practice
where an employee claims the need for leave for a domestic partner.
Where leave abuse is suspected, OPM indicated that agencies have the
existing authority to request documentation to substantiate a request
for leave, and that they should follow the same procedures for all
employees where they suspect leave abuse.

Comment: OPM's
definition of a domestic partner in a committed relationship is,
in my opinion, needlessly vague and over broad. Specifically, it is
unclear what it means to "share responsibility for a significant measure
of each other's common welfare and financial obligations." The terms
are undefined. Other than rejecting application of the definition to a
roommate, OPM fails to give examples to animate the meaning of this key
phrase. Certainly, the phrase applies to common law marriages, civil
unions, or domestic partnerships in States that recognize such
relationships. It is unclear, at least to me, why OPM would not adopt a
definition that ties the relationship to the attributes of a common law
marriage, domestic partnership, or civil union, as those terms have
been recognized by some States for years. Absent such a tether, OPM
invites a flood of litigation to flesh out the contours of a committed
relationship, particularly in the area above roommate and below
recognized common law marriage, civil union, or domestic partnership.
The point of a regulation is to give employers and employees useful
guidance so that they know what to expect and can conform their conduct
to meet legal obligations. This regulation, in my opinion, falls short
of meeting that standard.

The above regulatory changes do not
apply to the FMLA - yet. That will require modification of the Defense
of Marriage Act (DOMA). If, however, this is any example of the standard
to be applied in the event the DOMA and FMLA are modified to include
domestic partnerships, employers and employees should be prepared for
the tsunami of litigation that will ensue over the level of commitment to the relationship. The good news is that such a change should make
the attorneys very happy.

In the Unified Agenda for April 26, 2010, the DOL announced that it
will be proposing regulatory changes to implement the National Defense
Authorization Act of 2010, and the Airline Flight Crew Technical
Corrections Act, as well as other unspecified revisions, once it
completes its review of the subject. The DOL did not provide a date
when it it expected to propose the regulations. It did, however,
indicate that it would publish the revisions for notice-and-comment
rulemaking. The notice may be found at 75 FR 21832 (April 26, 2010).

Comment:
In addition to regulations implementing the referenced statutory
revisions to the FMLA, it is widely expected that the DOL under the
current administration will propose revisions to some of the regulatory
revisions to the FMLA made during the twilight of the Bush
Administration. In the prior Unified Agenda, the DOL anticipated that
it would have the new rules by this November - just in time for mid-term
elections. I find it interesting that the current Unified Agenda omits
an expected publication date. My guess - and that is all it is- is
that we will see new proposed DOL FMLA regulations by this November as
fodder for the base.

OPM has not proposed similar revisions to Title II of the FMLA. By statute, OPM is directed to follow the lead of the DOL. As such, I do not expect OPM to take any action to alter the existing FMLA regulations until sometime after the DOL has issued its revisions.

In Verkade v. US Postal Service, No. 09-1268 (6th Cir. May 27,
2010), the Court rejected the determination of the trial court that the
USPS was entitled to rely on prior incomplete medical certifications as
negative certifications to deny Verkade's request for FMLA leave. The
Court found that an incomplete medical certification is not the same
thing as a negative certification. The difference is important because
an employer may rely on a negative certification to deny an employee's
request for FMLA leave. A "negative certification" is one that is
complete, but that "facially demonstrates that the absence was not FMLA-qualifying."
Stoops v. One Call Commc'ns, Inc., 141 F.3d 309, 311 (6th Cir.
2006). For example, a certification that indicated that the employee
would not need to be absent from work is a "negative certification."
The certifications in Verkade were not invalid; rather they were
incomplete and lacked sufficient information to make a determination
whether the condition was FMLA-qualifying. The Court went on to affirm
the award of summary judgment in favor of the Postal Service on other
grounds.

A second noteworthy aspect of the decision involves the
Court's determination that five days afforded Verkade a reasonable
opportunity to cure the cited deficiencies in one of the medical
certifications he submitted. The Court found five days reasonable in
light of the extensive "history of Verkade's interaction" with the
Postal Service FMLA Office, including multiple prior notices detailing
the deficiencies with the prior, substantively identical certifications
he submitted.

Comment: The decision teaches: (1)
employers may not rely on incomplete certifications as "negative
certifications" to deny FMLA leave; and (2)the calculation of a
reasonable period to cure medical certification deficiencies may be
influenced (e.g., lengthened or shortened) by the employee's prior
awareness of what is required to submit a complete, valid medical
certification to support FMLA leave.

The decision is based on
version of the Title I FMLA regulations that was superseded by revised
regulations that went into effect on January 16, 2009. Under the
revised regulations, the employer must give an employee at least seven
calendar days to cure identified deficiencies. If seven days is not
practicable despite the employee's good faith efforts, the employer must
provide an unspecified amount of additional time. If the employee
fails to cure the deficiencies within the seven days (or longer, if
impracticable), the employer may deny the taking of FMLA leave. See 29
CFR 825.305(c). With respect to the calculation of a reasonable period to cure
certification deficiencies, the Verkade decision should remain
viable where it is not practicable for an employee to cure deficiencies
within seven calendar days.

OPM's regulations governing Title II of the FMLA do not include provisions allowing an employee to "cure" certification deficiencies. The decision, therefore, is of limited utility where Title II of the FMLA is involved.

Betsy Krutzig was employed by Pulte Homes. At the time of the events
at issue she was on a performance improvement plan. On August 17, she
requested FMLA leave for surgery. On the same day, a disgruntled
customer filed a complaint with a Pulte Vice President. The VP decided
the next day to terminate Lrutzig for failure to improve, and due to the
customer complaint. Krutzig sued alleging that her termination a day
after requesting FMLA leave interfered with her right to take FMLA
leave. The Eleventh Circuit disagreed. Joining the Sixth, Eighth, and
Tenth Circuit, the Eleventh Circuit held that an employee does not have
the absolute right to commence FMLA leave. An employee may be
dismissed, preventing her from exercising her right to commence FMLA
leave, without thereby violating the FMLA, if the employee would have
been dismissed regardless of any request for FMLA leave. The Court
reasoned that an employee who requests FMLA leave has no greater
protections against her employment being terminated for reasons
unrelated to an FMLA request than she did before submitted her request.
The Court found that to be the case, and affirmed the district court's
award of summary judgment in favor of Pulte.

Krutzig v. Pulte
Home Corp., No. 09-12512 (11th Cir. April 5, 2010)

Comment:
The decision is not a complete surprise as the Eleventh Circuit had
previously found that an employer could deny reinstatement to an
employee for reasons unrelated to the exercise of FMLA rights without
violating the FMLA. The case presented the Court with the opportunity
to apply the same rationale to discipline an employee after they have
requested FMLA leave, thereby preventing the employee taking FMLA.
Again, the employer may only do so where the action taken was for
reasons unrelated to the exercise of FMLA rights. As in this case,
legitimate reasons may involve removal. Non-disciplinary reasons, such
as a layoff or business shutdown, may also prevent an employee from
exercising FMLA rights post-request.

Under Title I of the FMLA, to be
eligible for FMLA leave an employee
must have worked at least 1250 hours in the 12-month period preceding
the commencement of FMLA leave. 29
USC 2611(2)(A)(ii).

In Bailey v. Pregis
Innovative Packaging, Inc., No. 09-3539 (7th Cir. April 2, 2010), it was
uncontested that the employee did not meet that test for the two
absences that formed the basis of her termination. That is, measured
from those absences, Bailey did not work the requisite 1250 hours in the
preceding 12-month period. She argued, however, that she was eligible
because she was entitled to toll the 12-month period for the 56 days
during that period in which she was on FMLA
leave. In so doing, Bailey argued that she was entitled to add the
time she worked during the 56-day period prior to the start of the
12-month period at issue, thereby extending the 12-month period from the
commencement of the leave at issue. With the addition of the time she
worked during this 56-day period Bailey argued that she met the 1250
work-hours requirement.

In rejecting the argument, the Seventh
Circuit opined:

There is no basis for such a contortion of the
statute-- no hint in the statute or elsewhere that Congress envisaged
and approved such a circumvention of the requirement that an applicant
for FMLA have worked 1,250 hours in
the preceding 12 months.

Comment: Absent a
USERRA situation, it is
well-established under Title I that leave, whether paid or unpaid, does not count
towards the 1250 work-hours eligibility requirement. This is because
the FMLA defines "hours worked" by
cross reference to the Fair Labor Standards Act, which excludes leave.
Undoubtedly aware of this, Bailey tried a creative end-run by raising
the tolling argument in an attempt to extend the 12-month period which
forms the base for calculating the 1,250 hours worked. A+ for effort.

Because it does not have the 1,250 work hours requirement, the decision does not apply to Title II of the FMLA.

Rachel Schaar worked as a medical receptionist for Lehigh Valley
Health Services for three years until her termination. Two weeks prior
to her termination she was treated for a urinary tract infection. Her
physician prescribed medication. He wrote a note indicating that Schaar
would be unable to work due to her illness for the next two days.
Schaar took paid sick leave for those two days (Wednesday-Thursday).
She remained absent on Friday and Monday. She claimed to be sick on
those days. Schaar had previously secured approved vacation leave for
Friday and Monday. Schaar did not request FMLA leave for those days.
Nor did she ask to convert those days from paid vacation to paid sick
leave. Schaar was subsequently terminated for failure to call off sick
on Friday and Monday as required by company policy. She sued alleging
interference and discrimination in violation of the FMLA. The district
court awarded summary judgment to Lehigh Valley, holding that Schaar
failed to establish that she had a serious health condition because
medical testimony was needed establish that her incapacity over the
weekend was due to the illness.

On appeal, the Third Circuit
reversed the award of summary judgment to Lehigh Valley. In so doing
the Court noted a three-way split by courts regarding the type of
evidence needed to establish that she was incapacitated by a serous
health condition: (1) the evidence of incapacitation must come
exclusively from a medical professional; (2) lay testimony, on its own,
is sufficient; or (3) lay testimony can supplement medical professional
testimony or other medical evidence. The court noted that "continuing
treatment by a health care provider," 29 CFR 825.114, does not, by its
plain terms, "require, or even mention, a health care provider
determination." As such, the court rejected the approach requiring that
evidence of incapacitation come exclusively from medical professionals,
and not lay testimony. However, the court also rejected the approach
that lay testimony alone may create a genuine issue of fact regarding
the existence of a serious health condition. "Some medical evidence is
still necessary to who that incapacitation was "due to" the serious
health condition. The court remanded the matter for further development
of the record consistent with its determination.

Comment:
The decision will require employers to exercise greater caution when
considering whether an employee who is absent in excess of the amount
covered by a medical certification nevertheless has an FMLA-covered
serious health condition and, therefor, is protected from discipline,
for the full absence. Unfortunately, the decision does not provide
guidance on how much lay evidence in addition to medical evidence is
necessary for an employer to determine whether the full absence is
covered by the FMLA. To rule out FMLA coverage, this will require employers to conduct a thorough
investigation of each incident before denying the leave or taking
disciplinary action. Employers should
seriously consider requiring employees to confirm the existence of a
serious health condition by submission of a medical certification for the
entire period and, if necessary, challenging the certification with a
second medical exam.

The Third Circuit covers New Jersey,
Delaware, Pennsylvania, and the Virgin Islands. The decision is also a
handy resource for the how other federal Circuit Courts have handled the
situation.

Maria Tayag requested 7 weeks of FMLA leave to care for her
seriously ill husband after surgery. She had previously taken FMLA
leave for her husband/s condition. Tayag provided medical
documentation substantiating her need for the requested FMLA leave,
including time to accompany her husband on any trips to provide
necessary physical assistance. The Company notified Tayag that the
medical documentation was incomplete, and requested additional
information. Believing that she had provided sufficient information,
Tayag declined to provide additional medical information. She and her
husband thereafter left for the Philippines, their native country, to
visit a Catholic priest renowned for his ability to heal the sick. The
Tayags spent approximately 60% of their time in the Philippines
participating in a faith healing pilgrimage at the Catholic church.
The remainder of the time was spent visiting family and friends.
Because of his serious ailments, Mr. Tayag is unable to travel without
his wife, who carries his bags, pushes his wheelchair, gives him
medication, and provides psychological support. At not time during the
trip did Mr. Tayag receive medical treatment or visit a health care
professional. The Employer terminated Ms. Tayag for her unexcused
absence. She sued alleging that her termination violated the FMLA.
Tayag and the employer moved for summary judgment.

The District
Court observed that it "is far from clear that caring for a seriously
ill spouse on a trip for non-medical religious purposes is protected
activity under the FMLA." The Court noted Ninth Circuit decisions
holding that the leave is unprotected where the reason for the travel
was not to receive medical treatment. Even assuming, arguendo,
that such is the case, the District Court went on to find that Tayag's
trip was not protected because nearly half of it was spent visiting
friends and family, not in faith healing activities that Tayag claimed
provided psychological benefits to her ill husband. The fact that
Tayag provided physical and psychological care to her husband was, the
Court found, incidental to the taking of a vacation, which is not
protected by the FMLA. The Court awarded summary judgment to the
employer dismissing the FMLA claim.

Comment: Note that
the District Court did not fully embrace the position of the Ninth
Circuit limiting FMLA"to care for" coverage to the situation where the
employee is traveling with the ill family member solely to receive
medical care. In an apparent attempt to stake out a middle ground, the
Court appears to take the position that the primary or predominate
reason for the travel must be to receive medical treatment, which the
Court broadly construed to include actual participation in
psychologically beneficial non-medical treatment (e.g., faith healing
observances). Because, however, the Tayags' spent 40% of their time
visiting family and friends, the Court found that the trip was not
primarily involved with the receipt of actual physical and
psychological treatment and, therefore, was not protected by the FMLA.

The
decision is confusing. By its plain terms, it finds that 40% of
something (time spent with family and friends) is incidental to the 60%
of the time spent participating in the receipt of actual, albeit
non-medical, psychologically beneficial activities. Setting aside the
definitional confusion, perhaps the Court is merely saying that time
spent receiving the claimed beneficial treatment, physical or
psychological, must be greater than 60%, although it need not be 100%
(as the Ninth Circuit cases seem to require).

Perhaps it was
not argued, but the Court does not address why seeing family and
friends is not at least as psychologically beneficial as participating
in faith healing rituals. Nor does the Court include in the
calculation the time Ms. Tayag actually spent providing physical or
psychological care. She operated his wheelchair throughout,
periodically gave him medication, and otherwise was providing
psychological care to him the entire time. The ultimate problem I have
with the decision is that it appears to value the psychological care
provided during faith healing exercises over the psychological care
provided at all times by Ms. Tayag. Such a distinction does not exist
in the FMLA.

The decision has a worthwhile discussion of "needed
to care for" where the employee requests to travel with the seriously
ill family member. Courts will undoubtedly continue to struggle in
this area.

OPM announced that it plans to issue final regulations implementing the military family leave amendments to Title II of the FMLA. The military family leave amendments to Title II were included in the National Defense Authorization Act of FY 2008. The amendments provide eligible employees up to 26 weeks of military caregiver leave, and amend the advanced sick leave regulations to allow the use of sick leave for military caregiver leave. OPM issued proposed military family leaver regulations on August 26, 2009.

Notably, the OPM indicated hat it will also be proposing changes to the existing sick leave and FMLA leave regulations "to enhance reader understanding and administration of these programs." OPM expects final action on the FMLA regulations to be completed by April 2010.

Comment: I do not expect OPM to issue the final military family leave regulations on or by April 2010. Generally, and as a matter of statute, OPM follows the DOL lead when it comes to FMLA regulations. The most recent amendment of the FMLA in the 2009 National Defense Authorization Act modified military family leave in several ways. I expect that DOL will issue proposed regulations to implement these changes. OPM will issue its own proposed military family leave regulations thereafter.

I also believe that OPM will hold back on issuing proposed changes to the existing FMLA regulations. The DOL announced in the Unified Agenda its intention to review the military family leave regulations, as well as the many changes made to the existing FMLA regulations in the last month of the Bush administration. As a matter of statute, OPM's Title II FMLA regulations generally follow the DOL FMLA regulations. As such, OPM will likely wait until DOL finishes its review of the existing Title I regulations before it makes any changes to its existing Title II FMLA regulations.